Opinion
For Opinion or Hearing see 95 Cal.Rptr. 197, 485 P.2d. 26
Opinion on pages 797 to 807 omitted
HEARING GRANTED
See 4 Cal.3d 932.
[92 Cal.Rptr. 792]White, Harber, Fort & Schei, and Gene E. Pendergast, Jr., Sacramento, for appellant.
McDonough, Holland, Schwartz, Allen & Wahrhaftig and Joseph E. Coomes, Jr., Sacramento, for respondent.
OPINION
COAKLEY, Associate Justice.
This appeal involves an election contest between John F. Keane, contestant and respondent, and Gordon I. Smith, defendant and appellant.
The rules governing primary election contests and appeals therefrom are found in the Elections Code, division 11, chapter 3. However, as held in Immel v. Langley, 52 Cal.2d 104, 338 P.2d 385, where the vote for a nonpartisan office results in a tie at the primary, an election contest and an appeal therefrom are governed by the rules applicable to general election, which rules are found in division 11, chapter 2, of said code. All section references herein are to that code, and all chapter references are to division 11 thereof, unless otherwise indicated.
The two men qualified as candidates for the office of judge of the Superior Court of Sierra County, and their names appeared on the official ballot for the primary election of June 2, 1970, as candidates for that office.
The official canvass of the returns of all precincts in the county (§ 18460 et seq.) and of the absentee ballots (§ 18201), resulted in a count of 632 votes for Smith and 618 votes for Keane for the office of judge. Keane filed a contest. At the trial, which followed, the court considered and ruled on objections to a number of ballots and then announced the official results of the recount as follows:
John F. Keane 622
Gordon I. Smith 630
[92 Cal.Rptr. 793]At Keane's request, the court reserved decision pending briefing by the parties. In due course, the court filed findings, conclusions, and a judgment. It found that one vote for Keane had been improperly rejected by the precinct board, and that nine votes had been improperly counted for Smith, resulting in 621 ballot votes for each candidate. Judgment followed that neither candidate received a majority of the votes cast and that the names of both shall appear on the general election as candidates for the office of superior court judge.
To avoid confusion and delay in printing the general election ballots the parties stipulated that the names of both should appear on the general election ballot without prejudice to the determination of their rights upon appeal. Although not a part of the record, Keane's brief points out that at the general election 771 votes were cast for Keane and 497 votes for Smith.
Smith appeals the judgment, contending that the none votes in issue should have been counted for him, in which case the official returns would then be Keane--621 votes, Smith 630 votes.
The trial court disallowed the none votes for Smith for judge of the superior court pursuant to its finding that '* * * it is impossible to determine the voter's choice for the office of Superior Court Judge, or for the office of District Attorney-Public Administrator, or for either of them.'
The so-called finding is actually a conclusion of law.
The so-called 'impossibility' of determining the voters' choice for the office of judge, as distinguished from that of district attorney-public administrator, arose from the fact that on the nine ballots disallowed as votes for Smith the respective voters had written in the name 'Gordon I. Smith' in the blank spaces immediately below the designation 'District Attorney-Public Administrator.' The official ballot when issued to the voters did not contain the name of any candidate for that office, and the trial court properly took judicial notice of the fact 'that Smith had not filed a declaration to be a write-in candidate for the office of District Attorney-Public Administrator and, therefore, the nine write-in votes could not by law be counted as votes for him for the office of District Attorney-Public Administrator.'
For requirements to qualify as a write-in candidate see sections 18600 et seq. of the code.
The issue is whether the court erred in ruling that the nine ballots could not be counted as having voted for Smith for the office of judge. We reproduce, as appendix 'A,' the relevant part of one of the nine ballots, all identically marked, including the name 'Gordon I. Smith' written in for 'District Attorney, Public Administrator.'
Ballots cast at polling places were stamped with a rubber stamp and ink provided of that purpose, as required by law (§ 14004). The absentee ballots were marked with pen and ink as permitted by law (§ 14660).
We hold that the court erred in disallowing the nine votes for Smith. Before stating the reasons for our holding on the substantive issue, we address ourselves to certain subsidiary questions.
Is the judgment appealable?
The judgment is appealable under section 20115. Immel v. Langley, supra, 52 Cal.2d 104, 338 P.2d 385, so holds. In that case, the Supreme Court considered substantially the same question and held that the effect of section 2 3/4 of article II of the Constitution '* * * is to transmute the primary election into a general election as to the nonpartisan offices to which it relates.' Upon that premise it held that proceedings to contest the result of a primary election between two candidates for nonpartisan office are properly brought under section 20021 (then section 8511) and [92 Cal.Rptr. 794]where, on recount, the court determines that neither of the candidates had received a majority vote, and appeal will lie under section 20115 (then section 8575). Sections 20021 and 20115 are found in chapter 2, dealing with general elections as distinguished from chapter 3, which deals with primary elections.
Parenthetically, we observe that in his 'Statement of Contest of Election' Keane treated the contest as solely arising under the code provisions regulating general election contests. His suggestion, in opposition to Smith's appeal, that section 20374, proscribing appeals in contests of primary elections, is applicable, is an about face on the theory of his contest.
In his brief and in oral argument before this court, counsel for Keane acknowledged that he knows of no decision which would indicate any change from the holding in Immel. He suggests, however, that contrary to Immel, 'the determination by the trial court of a tie vote changes the nature of the action back to a primary election contest so that the provisions of section 20374 of the Elections Code apply, making the judgment final in every respect and not appealable. Since the result of a tie vote would be to place the names of both candidates on the next general election following the primary, a summary disposition of the election contest would be a desirable result.'
The answer, of course, is that the Supreme Court has ruled to the contrary in Immel. Even without the guidance of that decision, we would be compelled to hold that section 20374 is not applicable, and does not foreclose an appeal in this case. It is not applicable because it applies only to primary election contests involving a so-called simple recount. Section 20374 is found in article 3 of chapter 3. Section 20360 of the same article provides that:
'The judgment of the court is final in every respect. No party may appeal.'
'This article applies only to contests on the ground that due to mistake, error, or misconduct the votes in any precinct were so incorrectly counted as to change the result.'
Because of section 20360 we interpret article 3 of chapter 3, and, therefore, section 20374, of which article it is a part, as referring only to contests questioning the correctness of the somewhat mechanical act of counting the number of votes cast for candidates, and for and against ballot propositions. We distinguish such act from the judgmental act of determining whether a vote or votes for a candidate or a proposition should be disallowed, or whether the entire ballot should be disregarded, upon grounds set forth in other provisions of the code.
For examples of questions requiring the exercise of jugdment in first determining whether a ballot should be counted see:
Keane next suggests that if this is an appeal 'from a contest other than a simple recount it has not been perfected by the Appellant within ten days after Judgment [92 Cal.Rptr. 795]of the Superior Court was pronounced as provided by Section 20339 of the Elections Code.'
This suggestion is equally without merit for two reasons: First, Smith filed his appeal on the very day the trial court filed its judgment, to wit, October 16, 1970. The ensuing delay of more than thirty days in preparing and filing the clerk's transcript on appeal cannot be attributed to Smith. Nor can the delay of more than four months during which the case was before the superior court be attributed to him. Second, a similar argument, i. e., that the court [the trial court in that case] loses jurisdiction to render a judgment after the statutory period for doing so has expired was rejected by the court in Garrison v. Rourke, 32 Cal.2d 430, 196 P.2d 884. There the court held that such statutory periods are directory and not mandatory.
Must the judgment be affirmed by reason of the substantial evidence rule? No.
The nine ballots constituted the only evidence before the court. Therefore, as in all cases involving the interpretation of written instruments, absent extrinsic evidence, a question of law, only, is involved, and we are not bound by the trial court's findings and conclusions. We must draw our own conclusions from the undisputed evidence. (Parsons v. Bristol Development Co., 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839; Patterson v. Hanley, 136 Cal. 265, 68 P. 821, 975; Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 530.) Patterson and Misch are election contest cases. The same rule is applicable to the construction of a statute. (Estate of Madison, 26 Cal.2d 453, 159 P.2d 630.)
We now consider the substantive question, viz., is it impossible to determine the choice of the nine voters for the office of judge of the superior court?
Again, the answer is 'No.'
Whatever the intention of the voters may have been, the write-in votes for Smith for district attorney could not be counted. This for the reason that section 18603, which was added to the code in May 1968, provides that:
'No name written upon a ballot in any state, county, city, city and county, or district election shall be counted for an office or nomination unless
'(a) A declaration has been filed pursuant to Sections 18601 and 18602 declaring a write-in candidacy for that particular person for that particular office or nomination and
'(b) The fee required by Section 6555 is paid when the declaration of write-in candidacy is filed pursuant to Section 18602.'
Smith had not filed a declaration as a candidate for district attorney-public administrator to appear on the printed ballot pursuant to section 6490 et seq. or as a write-in candidate as provided in section 18601. He qualified only for the office of judge, and was not a candidate for any other office. Therefore, the write-in votes for Smith for district attorney were idle acts and must be disregarded unless, as the court found, they rendered it impossible to determine the voter's choice for the office of judge for the superior court.
The right to vote is recognized as one of the highest privileges of citizenship. (Spier v. Baker, 120 Cal. 370, 52 P. 659.) A necessary concomitant is that one's vote shall be counted in accordance with the voter's intention as expressed by the markings on his ballot. His vote must not be disallowed on technical grounds unless [92 Cal.Rptr. 796]clearly required by the code. (See § 17071.) Thus we find this language, in Rutledge v. Crawford, 91 Cal. 526, 531-532, 27 P. 779, 780, involving an election contest for the office of judge of the Superior Court of Sonoma County:
'And, when the ballot intelligently shows that a particular person is voted for to fill a particular office, it cannot be counted differently because the court may believe that the voter made a mistake in preparing his ticket. Voting for a person to fill an office for which he is not a candidate may be the result of mistake, or it may be merely the frivolous exercise of the right of suffrage; but, no matter whether such action be attributed to folly or mistake, the ballot is the only expression of the voter's will, and it must be counted according to its legal effect.'
Examining each of the nine ballots, we do not find it 'impossible' to determine the voters' choice for the office of judge of the superior court. Clearly, for 'that office' each preferred Smith over Keane, and each expressed his preference for 'that office' in the only manner permitted by law, viz., by stamping or writing a cross [X] opposite the name of the candidate of his choice, to-wit, Smith, and by refraining from marking his ballot for Keane. If the voter had (A) placed a cross [X] opposite the name of each of the two candidates as in Garrison v. Rourke, supra, 32 Cal.2d 430, 196 P.2d 884, or (B) had unsuccessfully attempted to erase or otherwise obliterate the cross [X] which he had made opposite Smith's name, thereby indicating that he had changed his mind about voting for Smith for judge (see Sweetser v. Pacheco, 172 Cal. 137, 155 P. 639), or (C) if, as in Salcido v. Roberts, 136 Cal. 670, 69 P. 431, the voter had stamped the ballot for a candidate whose name was printed on the ballot as a candidate for supervisor and then wrote in a different name for the same office, it would rightly be held that it was impossible to determine the voter's choice for that office. Such is not our case.
We, of course, do not know with certainty what the nine voters had in mind when each wrote in the name of 'Gordon I. Smith' for district attorney-public administrator. It is noted from the ballot that Smith held that office at the time of the primary election. We believe that the most reasonable explanation for the write-in votes is that the nine voters were satisfied with Smith's conduct of the office of district attorney-public administrator, and they attempted to express a desire that he be returned to that office if unsuccessful his bid for the office of judge. As noted earlier, the fact that such write-in votes could not be counted as votes for district attorney-public administrator, and that the voters performed idle acts, cannot legally be held to void their votes for Smith for judge.
Counsel acknowledge that they have been unable to find a California case directly in point. Our research of California law has been similarly unproductive.
In Misch v. Russell, supra, 136 Ill. 22, 26 N.E. 528, the official canvass declared Russell elected as president of the school board over Misch by ten votes. Ten ballots had been rejected because each was marked for Misch (A) as president of the school board, and (B) as a member thereof. The judges of elections, the official canvassing body, ruled that because the office of president of the board and that of a member of the board were incompatible and both offices could not be held by the same person, it could not be determined for which of the two offices the votes were cast. Accordingly, the ten ballots for Misch were disallowed for uncertainty and ambiguity. The Supreme Court reversed holding that: [92 Cal.Rptr. 797]'The judges of election in this case were mistaken in supposing that there was any uncertainty or ambiguity in the ballots in question which needed explanation. The intention of the voters clearly appeared to vote for Misch, both for president and member of the board of education; and the fact that they saw fit to vote for him for the latter office furnished said judges no excuse for refusing to record in his favor their vote for him for the former. Their intention to vote for him for president of said board appearled clearly and unmistakably upon the face of the ballots, and said votes should have been counted for him for that office.' (26 N.E. p. 531.)
Sweetser v. Pacheco, supra, 172 Cal. 137, 155 P. 639, involved a contest for the office of board of supervisors. The primary issue was whether markings on several ballots had been placed thereon by the respective voter for the purpose of identifying his ballot in violation of section 17074, formerly Political Code section 1211. On that issue the court held that the stamping of a cross [X] as to both 'Yes' and 'No' on certain propositions, and other confusing and improper markings did not show an attempt to identify the ballot. As to several of the questioned ballots the court held that the vote on certain of the propositions could not be counted because they had not been marked in accordance with law. However, as to those ballots it held:
'The vote for supervisor was properly indicated on each of these ballots. It was error to reject any of these votes in so far as the contest for supervisor was concerned. There was nothing on any of these ballots to indicate any intent to identify the ballot, and however defective any of them was to indicate a vote on any other candidate or proposition, it showed a good vote for a candidate for supervisor.'
We hold that it was the intention of the voters of the nine contested ballots in this case to cast their ballot for Gordon I. Smith for judge of the superior court and that no uncertainty or impossibility in determining the voters' intention arises with respect to the votes for 'that office' by virtue of said voters having also written in the name 'Smith' for district attorney.
It is unnecessary to consider the second issue raised by Keane in the trial court, viz., whether the nine ballots must be disallowed as votes for Smith because, by virtue of the write-ins, each contains marks identifying the voter in violation of section 14416 of the Elections Code, reading as follows:
'A voter shall not place any mark upon his ballot by which it may be afterwards identified as the one voted by him.'
Keane, having abandoned his appeal, the issue is not before us. Independent of abandonment, the contention is without merit.
See section 18600 permitting write-in votes and section 17074, which provides that: 'No unauthorized mark upon a ballot invalidates the ballot, unless it appears that the mark was placed there by the voter for the purpose of identifying the ballot.' In this case, no such intent appears from the writing in of the name 'Gordon I. Smith.' If the proposition urged by Keane were the rule, no write-in vote would ever be counted, thus nullifying section 18600 et seq. (See Day v. Dunning, 127 Cal. 55, 59 P. 196.)
The judgment is reversed with directions to the trial court to declare Gordon I. Smith elected judge of the superior court at the primary election on June 2, 1970, and to direct that a certificate of his election to that office be issued as required by law.
STONE, P. J., and GARGANO, J., concur.
[92 Cal.Rptr. 798]Appendix "A'
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
(A) Section 20300, subdivisions (a) through (c), of article 1, chapter 3, both of which deal with primary elections and set forth grounds other than numerical count for contesting such elections, including (1) the defendant's ineligibility to hold the office in dispute; (2) commission by the defendant-candidate of certain acts proscribed by the code and for which penal sanctions are provided; (3) fraudulent, forged and otherwise improper votes.
(B) Section 17072, disallowing a particular vote where it is 'impossible' to determine the voter's choice for a particular office.
(C) Section 14416, forbidding the placing of identifying marks on a ballot and the annotations to that section which appear in West's and in Deering's Annotated Codes, wherein ballots allegedly bearing identifying marks were counted or rejected.
(D) See section 20021, subdivision (a) through (c) setting forth grounds for contesting general elections, which grounds require the exercise of judgment.